Thomas Hardy’s Tess of the d’Urbervilles sprang in part from Hardy’s reaction to the case of Martha Brown, hanged in 1856 for the murder of her abusive husband. Novels have often served to fix our image of legal processes: think of Dickens’s condemnation of the chancery court in Bleak House, or Fielding’s satire on 18th-century criminal justice in novels like Tom Jones. In Tess, Hardy gave us an enduring image of the stereotype of female criminality that pervaded the Victorian era and indeed cast its shadow over 20th-century popular culture and criminology.

The image of the female offender has often approached the ultimate stereo-type of conventional femininity: passive; driven by emotion rather than reason; moved by impulses located in the body rather than the mind. Like most female criminals in novels of the Victorian period, Tess’s position as a woman underlines her social powerlessness.

But does this image of passive, victimised female criminality, tinged with a shade of madness, stretch as far back into law and literature as it stretches forward? Turn to Tess’s literary cousin, Daniel Defoe’s Moll Flanders (1722), who enlivened our TV screens in 1996. Bold, beautiful and brilliantly resourceful, Moll was ideally qualified to be the heroine of one of the first English novels. She did, however, exhibit one unheroic characteristic. For most of the novel she is involved in distinctly unromantic property offences, including shoplifting, swindling and even stealing from children. Born in Newgate jail of a mother who has escaped execution by “pleading her belly”, Moll uses her beauty and ingenuity to escape poverty through crime. Adding colour to this pattern of thieving and deception, Moll enjoys an active and varied love life, with plentiful instances of fornication and adultery.

Ostensibly, Moll Flanders is a tale of sin and repentance. She is eventually caught, convicted and transported to Virginia with one of her five husbands, a convicted highwayman. Awaiting her punishment in Newgate, she renounces her criminal habits. But, her punishment completed, she is rewarded with riches gained by legitimate use of her talents. It is hard for the modern reader entirely to believe in her reformation. For a morality tale, the moments of her regret and punishment are extraordinarily brief. If Defoe’s message was that redemption is always available to the penitent, he also conveys very forcefully that wit, courage and enterprise are valuable attributes for a woman.

Moll could not be a greater contrast to the stereotype of female criminality embodied in Tess. For Moll is autonomous, brimming with ambitions and strategies for pursuing them. Unlike Tess, she shapes her own destiny. A strong, active and dominant woman, Moll’s world is peopled by women similar to herself. The men in this world are often weak, indecisive and passive.

Defoe, we must conclude, found it natural to have a sexually active, socially marginal female thief as his protagonist. And the success of Moll implies early readers received her as being entirely plausible; exceptionally, during that period, women constituted half the defendants before London’s main criminal court. Moll’s supersession by very different models of female criminality, like Tess, serves as a metaphor for fundamental changes in society. Moll’s descendants were caught up in a cluster of social developments that contributed to the unthinkability of such a character in Tess’s era. As we watched Tess’s fate unfold on TV this autumn, it is perhaps worth asking ourselves whether, in 2008, Moll Flanders is thinkable again – and, if so, whether this is a good thing or a bad.